Howard v. Illinois Cent. R. Co.

• Decision Date: 07 April 1933
• Docket Number: No. 4838.,4838.
• Citation: 64 F.2d 267
• Parties: HOWARD v. ILLINOIS CENT. R. CO.
• Court: U.S. Court of Appeals — Seventh Circuit

64 F.2d 267 (1933)

HOWARD v. ILLINOIS CENT. R. CO.

No. 4838.

Circuit Court of Appeals, Seventh Circuit.

April 7, 1933.

William C. Bachelder and Harold K. Bachelder, both of Indianapolis, Ind., for appellant.

Harvey J. Elam and Howard S. Young, both of Indianapolis, Ind., Edward C. Craig, of Chicago, Ill., and Hinkle C. Hays, of Sullivan Ind., for appellee.

Before EVANS and SPARKS, Circuit Judges, and FITZHENRY, District Judge.

FITZHENRY, District Judge.

Appellant Howard sued appellee, Illinois Central Railroad Company, for damages alleged to have been by him suffered through the institution and dismissal of a condemnation suit in the Marion county superior court of the state of Indiana.

In April, 1916, the railroad filed a complaint to condemn certain real estate belonging to Howard, to be used by it in elevating its tracks in the city of Indianapolis.

The complaint in the instant suit recites that in the condemnation suit Howard was awarded a verdict for $9,000 damages, and judgment was entered thereon. From this judgment the railroad appealed to the Supreme Court of Indiana, where the judgment was reversed and the cause remanded. 196 Ind. 323, 147 N. E. 142, 148 N. E. 413. While the action was awaiting a second trial the railroad dismissed its complaint therein; that as a result of the alleged acts Howard was deprived of the possession and the free and unrestricted use of the real estate in question during all of the period from April, 1916, to January 13, 1926; that by reason of the dismissal of the suit plaintiff was damaged because he was forced to employ attorneys to represent him in the above-entitled cause, for witnesses, court costs, and other necessary expenses, aggregating several thousand dollars; that he was deprived from expanding his business upon said premises; that he was required because of the condemnation suit to purchase other property, that he might have a place to remove his business; and that by reason of the litigation and a final dismissal of the suit by the railroad, he suffered other substantial damages.

After certain preliminary pleading, not of importance here, the railroad filed its demurrer to Howard's amended complaint, which demurrer was sustained. Howard stood by his amended complaint; whereupon judgment was entered in favor of appellee.

Error is assigned because, it is contended, the complaint did state facts sufficient to constitute a cause of action against appellee, in that the complaint alleged that appellant was damaged by the acts of the appellee in taking appellant's property for a public use without compensation, for which appellant is given a right to an action for damages under the laws of Indiana and the United States.

The case turns upon the question, as to whether a condemnation proceeding, under the statute of Indiana, may be discontinued by the condemner before taking possession and before final judgment without liability for damage accruing.

Appellant's complaint shows that appellee lawfully commenced suit to condemn certain real estate owned by appellant. The statute of Indiana under which the proceeding was instituted provides that any defendant in a case of that character may object to such proceeding on the ground that the court has no jurisdiction either of the subject-matter or the person, or that plaintiff has no right to exercise the power of eminent domain for the use sought, or for any other reason disclosed in the complaint, or set up in such objections. The statute requires such objections to be in writing, and provides: "But if such objections are overruled, the court or judge shall appoint appraisers as provided for in this act; and from such interlocutory order overruling such objections and appointing appraisers, such defendants, or any of them, may appeal to the Supreme or Appellate Court from such decision as and in the manner that appeals are taken from final judgments. * * *" Section 7684, Burns' Ann. St. Ind. 1926.

In the condemnation case upon which this action is predicated, the objections were overruled and Howard appealed, which stayed the proceeding in the trial court. The judgment was affirmed and the cause remanded. Howard v. Illinois Central R. R. Co., 186 Ind. 88, 115 N. E. 50. The second trial resulted in a verdict for Howard for $9,000. The railroad then appealed to the Supreme Court of Indiana. The judgment was reversed and the cause remanded. Illinois Central R. R. Co. v. Howard, 196 Ind. 323, 147 N. E. 142, 148 N. E. 413. While it was pending on the dockets of the trial court, the railroad concluded to discontinue the cause. At the time of the dismissal of the condemnation suit there was no final judgment and no possession taken of appellant's property.

It is clear that under the general law which obtains in all jurisdictions, except where changed by local statute, there could be no recovery for any incidental damages which may have accrued by reason of the dismissal of the suit by the railroad.

The case of Kanakanui v. United States, 244 F. 923, 926, was before the Circuit Court of Appeals of the Ninth Circuit, and the exact question here involved was under discussion. The court said: "If, as an incident to the right which the United States properly exercised to condemn property to a public use in a proceeding which was subsequently abandoned, the defendants were required to incur expenses, or were incidentally injured, it was a case of damnum absque injuria, and comes within — `the universally recognized principle of law which exempts from liability for loss or damage incidentally resulting from the proper exercise of a legal right.'"

In discussing a similar case, the Supreme Court of Minnesota used some language especially applicable to the instant case in Bergman v. St. Paul Ry. Co., 21 Minn. 533: "If the plaintiff is entitled to recover, it must be by virtue of some contract, express or implied, or of some positive rule of law conferring upon him a right of action, or upon the ground that defendant has been guilty of a tort. Certainly there is no contract here, nor is there any positive rule of law upon which plaintiff can base a right of action. Neither is there anything in the complaint tending to show any tortious or malicious conduct on the part of defendant."

It cannot be controverted that the railroad was authorized and empowered to institute and conduct the condemnation suit in question (Howard v. Illinois Central R. R. Co., supra), nor can there be any question under the decisions of the courts of Indiana and the statute as to the railroad's lawful right to dismiss the proceedings before final judgment. City of Terre Haute v. Sachs, 171 Ind. 679, 86 N. E. 45; Sowers v. Cincinnati, etc., R. R., 162 Ind. 676, 71 N. E. 134; Brokaw v. City of Terre Haute, 97 Ind. 451; Evans v. Plymouth Church, 189 Ind. 381-385, 127 N. E. 406; section 354, Burns' Ann. St. Ind. 1926.

The rule is settled that, in the absence of a statute authorizing such recovery, a landowner may not recover damages from a condemner when the condemnation proceeding is dismissed in good faith and at a time when the condemner had a right to dismiss the proceeding. Kanakanui v. United States (C. C. A.) 244 F. 923; Winkelman v. Chicago, 213 Ill. 360, 72 N. E. 1066; Feiten v. City of Milwaukee, 47 Wis. 494, 2 N. W. 1148; 20 Corpus Juris 1086.

To warrant a recovery in the absence of a statute authorizing it, the acts causing the damage must have been wrongful as well as injurious. 20 Corpus Juris 1086.

Concerning the Recovery of Damages. — Where the statute does not expressly authorize the recovery of incidental costs or damages which have accrued to the landowner, the damages are not those growing out of the lawful dismissal of the suit, but must be such as arise from the actual occupation of the land. In discussing cases of this character, Lewis, in his work on Eminent Domain (3 Ed. § 957, p. 1685), says: "If, pending proceedings, possession has been taken of the property sought to be condemned, the abandonment of such proceedings renders the possession wrongful from the beginning, and a suit will lie for any damages occasioned by the entry and possession. But the gravamen of such claim is not the institution and abandonment of the proceedings, but the trespass."

Appellant does not seriously contend that the court erred in sustaining the demurrer if the "Federal" or general rules are applicable in this case, but it is contended that they are not applicable here, for the reason that the courts of Indiana have held to the contrary and afford the appellant the remedy which was denied by the ruling of the court.

Appellant especially relies upon the case of Brokaw v. City of Terre Haute, 97 Ind. 451, as sustaining his right to a recovery, and he also contends that the rules laid down in the Brokaw Case are explicitly reaffirmed and approved in City of Terre Haute v. Sachs, 171 Ind. 679, 86 N. E. 45. Appellant substantially bases his contention upon one sentence taken from the Brokaw Case: "The plaintiff in a condemnation suit may dismiss his action before final judgment, but becomes liable in another action for any damage sustained by the land owner, which was the direct and proximate result of the proceedings and the acts of the plaintiff under them."

Disregarding the use of the words "and the acts" following the word "proceedings," the sentence might be construed as applicable to any kind of damage that the landowner had suffered and might be broad enough to embrace appellant's contention. However, when that one sentence is considered in connection with the remainder of the opinion, it has an altogether different meaning from the one attributed to it. The opinion itself says: "The sole question presented for our consideration is, was the appellee precluded from discontinuing the proceedings by its act of opening the street in controversy before the final determination of the appeal?"

A different statute from the one in the...